FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12413/03 by Janusz BIZIUK and Irena BIZIUK against Poland

The European Court of Human Rights (Fourth Section), sitting on 12 December 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 21 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Janusz Biziuk and Ms Irena Biziuk , are Polish nationals who were born in 1931 and 1934, respectively , and live in Sokółka .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 26 May 2000 the first applicant lodged with the Sokółka District Court a claim for compensation for allegedly unjustified detention during criminal procee dings against him. His case was registered by the court ’ s registry on 25 January 2001 and later transferred to the Białystok Regional Court . A hearing was subse quently listed for 28 November 2001. On an unspecified date the applicant was granted legal aid.

On 19 November 2001 the second applicant submitted a claim for compensation for her allegedly unfair criminal conviction and requested that her case be examined jointly with the first applicant ’ s claim. At a hearing held on 26 November 2001 the court decided that her claim should be examined separately.

On 28 November 2001 the Białystok Regional Court dismissed the first applicant ’ s claim . It found that he had been detained for forty three days in a psychiatric hospital, because he had prev iously repeatedly failed to comply with summonses to undergo a psychiatric examination ordered to establish whether he could be held criminally liable . He had also absconded for some periods of time . The court had regard to the fact that t he applicant had been duly informed about the dates of the planned psychiatric examination. It further observed that the applicant had once been arrested and brought to the hospital for the same purpose, but had left without permission after several days. Hence, given the applicant ’ s manifest unwillingness to co-operate in establishing the circumstances relevant to the assessment of his criminal liability, the decision to remand him in custody had been fully justified.

The first applicant ’ s legal - aid lawyer appealed, arguing that the court had wrongly assessed the evidence and wrongly applied the applicable legal provisions.

In addition, t he applicant lodged his own appeal with the appellate court. In this appeal he raised in essence the same complaints . He further submitted that his defence rights had been breached in the criminal proceedings. He also complained that his legal - aid lawyer had only been informed about the hearing held on 26 November 2001 on the same day, which negatively affected the fairness of the proceedings.

On 29 August 2002 the Bialystok Court of Appeal dismissed the appeal brought by the applicant ’ s lawyer, fully sharing the conclusions of the first-instance court. The court did not examine separately th e appeal lodged by the applicant himself.

B. Relevant domestic law

In proceedings concerning claims for compensation for unjustified detention or conviction, the Code of Criminal Procedure applies.

According to Article 444 of the Code of Criminal Procedure, a party can lodge an appeal against a decision of a first-instance court with the appellate court. Pursuant to Article 446 § 1 of the Code, legal representation is mandatory where a first-instance judgment has been given by a regional court.

In a decision of 23 February 2005, the Kraków Court of Appeal held that where legal representation in criminal proceedings was mandatory, arguments contained in an appeal drawn up by a represented person him – or herself could be regarded by the court as additional arguments supporting the reasoning underlying the remedy filed by a lawyer ( Kraków Court of Appeal, II Aka 52/05, KZS 2005/2/41).

Article 79 § 1 of the 1997 Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Pursuant to Article 46 § 1 of the Constitutional Court ’ s Act , a constitutional complaint has to be lodged within two months from the date on which the individual decision was served on the complainant.

COMPLAINTS

The applicant s complain ed, referring to Article 6 § 1 of the Convention, that the civil proceedings in the first applicant ’ s case had lasted too long.

They a lso complain ed that in these proceedings the Regional Court had failed to summon in good time the first applicant ’ s legal aid lawyer to the hearing in the compensation case .

The applicant s complain ed that the appellate court had entertained the appeal lodged by the first applicant ’ s lawyer, but it had not given a formal decision to reject his own a ppeal. They argue d that the requirement to be represented by a lawyer in the appellate proceedings had amounted to a serious and unjustified restriction of his right of access to a court. He intended to challenge relevant provisions of domestic law before the Constitutional Court . As in order to do to so it was necessary to have a decision issued by a competent authority and based on the contested legal provisions, he submitted the appeal himself, with a view to obtaining a decision rejecting his appeal and institut ing subsequently proceedings before the Constitutional Court.

THE LAW

1. The Court first observes that the second applicant was not a party to the proceedings concerned. It therefore considers that the application, insofar as it concerns the second applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The first applicant complain ed, referring to Article 6 § 1 of the Convention, that the proceedings in his case had lasted too long.

Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time by [a] ... tribunal...”

The Court observes that under domestic law it was open to the applicant , since 17 September 2004, the date of entry into force of the Act of 17 June 2004, to have recourse to a compensatory remedy for ex cessive length of proceedings. The Court has examined the effectiveness of this remedy and held that from 17 September 2004, the date on which the 2004 Act entered into force, an action for damages based on Article 417 of the Civil Code acquired a sufficient level of certainty to become an “effective remedy” within the meaning of Article 13 of the Convention for an applicant alleging a violation of the right to a hearing within a reasonable time in judicial proceedings which came to an end less than three years before that date ( Krasuski v. Poland , no. 61444/00 §§ 69-72, 14 June 2005 ).

The Court notes that the proceedings in the first applicant ’ s case ended on 29 August 2002, less than three years before 17 September 2004. However, he has not availed himself of this remedy.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The first applicant complained that the proceedings had been unfair in that the first-instance court had failed to summon in good time the legal aid lawyer to the hearing held in the compensation case .

The Court first notes that the applicant ’ s allegation as to the time of the summons has not been substantiated. In any event, the Court observes that the applicant was granted legal aid for the purpose of the compensation proceedings. At the hearing held on 28 November 2001 he had the benefit of professional legal representation by an advocate assigned to the case under the legal-aid scheme. The Court observes that it has not been shown how the fact that the lawyer had allegedly been summoned to the hearing on the same day had negatively affected the fairness of the hearing held before the first-instance court. It further notes that this complaint was not raised in the appeal submitted to the second-instance court by the lawyer.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The first applicant complain ed that the appellate court had entertained his lawyer ’ s appeal and that it had not given a formal decision to reject his appeal. He argue d that the requirement to be represented by a lawyer in the appellate proceedings amounted to a serious and unjustified restriction of his right of access to a court and that it made it impossible for him to lodge a constitutional complaint with the Constitutional Court .

The Court reiterates that it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court (see among other examples Steel and Morris v. the United Kingdom , no. 68 4 16/01, § 59, ECHR 2005 ‑ ...). However, the right to a court, embodied in Article 6 of the Convention, is not absolute and may be subject to limitations. However, the limitations applied cannot restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, inter alia , Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 4 2527/98, § 4 4 , ECHR 2001 ‑ VIII).

Article 6 of the Convention “does not ... compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6” ( Delcourt v. Belgium , judgment of 17 January 1970, Series A no. 11, p. 1 4 , § 25). In addition, the compatibility of the limitations permitted under domestic law with the right of access to a court set forth in Article 6 § 1 of the Convention depends on the special features of the proceedings in issue, and it is necessary to take into account the whole of the trial conducted according to the rules of the domestic legal system ( Delcourt , cited above, p. 15, § 26). It is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention. The Court recalls that the requirement that an appellant be represented by a qualified lawyer before the appellate court cannot in itself b e seen as contrary to Article 6 ( Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, §§ 45-47, ECHR 2002-VII, mutatis mutandis ).

In the present case, the Court first notes that in the proceedings before the first-instance court the applicant was represented by a legal-aid lawyer. The Court further notes that under the applicable provisions of domestic law legal representation was mandatory for the purposes of lodging an appeal against the first-instance judgment and that the applicant ’ s lawyer submitted such an appeal. The Court is of the view that the mere fact that the appellate court examined arguments advanced by the applicant ’ s lawyer in his appeal and did not examine the applicant ’ s own appeal separately did not reduce the applicant ’ s access to the court in such a way or to such an extent that its very essence was impaired. It has not been shown or argued that the applicant was in any way prevented from instructing his lawyer to include in the appeal such arguments as he thought relevant to the prospects of success of his compensation claim. In this connection, the Court notes that under the case-law of the Polish courts, the appellate court was not prevented from considering the arguments advanced by the applicant in his own appeal (see Relevant domestic law).

Having regard to the circumstances of the case seen as a whole, the Court is satisfied that the State, by granting legal aid to the applicant, discharged its obligation to display diligence so as to secure to th e applicant the genuine and effective enjoyment of the rights guaranteed under Article 6 ( R.D. v. Poland , nos. 29692/96 and 34612/97, § 44, 18 December 2001 ).

Insofar as the applicant complains that he could not lodge an individual constitutional complaint provided for by Article 79 of the Constitution, the Court observes that Article 6 § 1 of the Convention does not guarantee a right of access to a court with competence to invalidate or override a law (see Laino v. Italy , no. 33158/96, § 18, ECHR 1999-I).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President